The insensitive treatment of a difficult issue was readily visible in Stenberg v. Carhart, when the Court extended the legal time frame for abortion from the viability right up until birth, no questions asked. Most people, myself included, believe that safe abortions should be allowed within the first few months of pregnancy, especially given the realities facing women with low incomes or victims of rape or incest. And I certainly don't think a tiny embryo has a right to life. But is there really a constitutional right to abort one's child mere hours before it is born? People in the red states would overwhelmingly say "no."
This vast ruling understandably angered America's "conservatives." The Court played into Justice Antonin Scalia's hands, fanning hatred of abortion rights by establishing that Roe v. Wade protects the rare instances where abortion actually is murder. The Court also removed any chance for the democratic process to ease tensions on the partial-birth abortion question. Ideally, the U.S. will someday decide that abortion should be allowed within the first few months of pregnancy but should not be legal immediately before birth, citing such cases as murder. When the Court protects abortion up until birth, no compromise or debate is possible, and no one gets exposed to any of the other side's arguments. This overly broad approach has been applied to another issue in the recent case of Roper v. Simmons: the death penalty for 16 and 17-year-olds.
Suppose that a man breaks into a woman's home, covers her head with a towel and binds her arms with electrical wires. He then drives her to a bridge and throws her into a creek, where she drowns. He had planned the crime months in advance. Some may call the act barbaric, inhuman or even sadistic. If the perpetrator is only 17 years old, however, the Supreme Court considers it youthful indiscretion. The Court ruled last week that people under 18 cannot be held fully accountable for their actions and thus cannot be executed. I included the description of the crime not to scare anyone, but to point out that 17-year-olds can commit crimes as heinous and as calculated as those committed by 18-year-olds. I do not mean to disparage those who oppose the death penalty in such circumstances: Opposition is a respectable opinion, and many states have banned the death penalty in such instances. But a "national consensus" clearly does not exist in favor of a blanket prohibition. Most states that have the death penalty for adults also allowed it (up intil Roper) for juveniles.
More troubling, however, was the legal reasoning behind Roper v. Simmons. International court cases were featured in the decision, as was a reference to "the overwhelming weight of international opinion." Deferring to other countries' legal systems is a bad long-term strategy. What if other countries begin to lean toward racial profiling, erode free speech or become fascist? Should that sway how we interpret our Constitution? I for one don't think so. Liberal justices believe they can cite international opinion when it favors their desired result, forgetting that they won't always be in the majority. Conservative justices may, in the future, use the same flawed reasoning to restrict abortion rights, which are generally less free in other countries.
These two cases, which are dubiously reasoned at best, are most likely to anger America's Bush supporters. Of the states that had juveniles on death row, most voted for Bush, and partial-birth abortion laws are usually supported by red states. To the typical evangelical, emotionally salient issues like the death penalty and abortion are likely to arouse much more anger than, say, the outsourcing of white-collar jobs. By writing their liberal politics into the Constitution in such areas, the Court is only ensuring that these social issues will continue to resonate among the population, crowding economic issues out of sight. This trend can only favor the most right-wing Republicans, who already wield significant influence in Washington.
I'm not saying that the issues revolving around the death penalty or abortion are clear-cut. In fact the opposite is true. Because these are such tough issues, they should be left to the democratic process. It is this process, and not the unelected judiciary, that best reflects changes in behavior and "evolving standards of decency." I also hope that these cases, which blatantly favor blue state values, will finally extinguish the myth that Republicans control "all three branches of government." When I hear this truism I feel like Christopher Columbus must have felt when he heard that the earth was flat. I do believe one thing, however: As long as the Court continues to prevent states from reaching their own conclusions on difficult matters which people care deeply about, Republicans will continue to exploit these issues to their advantage.
Buchman can be reached at jlbuchman@amherst.edu